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The International Law Commission’s Draft Articles Upon Interpretation: Textuality Redivivus, 61 American Journal of International Law 992 (1967)

Abstract

The great defect, and tragedy, in the International Law Commission's final recommendations about the interpretation of treaties is in their insistent emphasis upon an impossible, conformity-imposing textuality. This unhappy emphasis makes an appearance in, and dominates, the goal for interpretation which the Commission implicitly postulates but never critically examines; the deprecatory appraisal which the Commission offers of the potentialities that inhere in the rational employment of principles of interpretation; and the content and ordering of the particular principles which the Commission puts forward for canonization as "obligatory" rules of law.

In explicit rejection of a quest for the "intentions of the parties as a subjective element distinct from the text," the Commission adopts a "basic approach" which demands merely the ascription of a meaning to a text. The only justification offered, and several times repeated as if in an effort to carry conviction, is that "the text [of a treaty] must be presumed to be the authentic expression of the intentions of the parties" and hence that "the starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties." This arbitrary presumption is described as "established law" because of approval by the Institute of International Law and pronouncements by the International Court of Justice. The Court, it is noted, "has more than once stressed that it is not the function of interpretation to revise treaties or to read into them what they do not, expressly or by implication, contain."